If you are involved with buying, selling or brokering houses and condominiums but you don’t enjoy getting involved in lawsuits, “The No-Lawsuit Guide to Real Estate” by Realtor Barbara Nichols will show you how to stay out of court. The author has been involved with hundreds of real estate cases, primarily as a consultant and expert witness, so she is well-qualified to advise how to prevent realty lawsuits.
This new book explains virtually every aspect of home sales, what can go wrong from a legal viewpoint, and how to prevent lawsuits. Nichols cautions realty agents to strongly recommend that buyers always hire a professional home inspector and attend that inspection along with the real estate agents. “The real estate agent for the seller should advise clients to never accept a no-inspection-contingency offer,” she advises.
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Heavy emphasis is placed throughout the book on getting everything in writing, including contract changes that occur after the original agreement is signed. Modification examples include a seller’s repair credit if the professional home inspector reveals unexpected defects and “as is” sales terms.
In addition to discussing how home buyers, sellers and their realty agents should handle disclosures of known structural defects, the author thoroughly explains the fiduciary duties of the realty agents to their sellers and buyers. Attention is drawn to the dangers of dual agency (which the author obviously dislikes) and clarifications of who represents whom in the home sales transaction.
The book’s most confusing chapter is about building permits. Without explaining what she means, Nichols begins by asking, “Why is getting the permits so important to avoiding liability?” It took me several pages to understand that she’s not talking about actually applying for new building permits for remodeling or room additions but about getting copies of all building permits affecting a home.
After the initial confusion, she then does an admirable job of explaining the bad consequences for home sellers who failed to obtain required building permits, such as having appraisers not include square footage that was added without a proper permit or a certificate of occupancy.
Throughout the book Nichols refers to many examples from court decisions and her personal experiences as a consultant or expert witness. Although I recognized some of the well-known cases, the book would have been more far valuable if it gave the case names and citations so readers or their lawyers can read the actual court reports for more details.
The book is filled with practical advice, primarily for real estate agents, but also for home sellers and buyers. For example, the author shares her personal experiences regarding dealing with relatives and friends, documentation of home sales transactions, and even injuries and safety when showing a property to prospective buyers. Legal liability is lurking everywhere, according to Nichols.
Chapter topics include “The Liability Problem”; “Misrepresentation and Fraud”; “The Real Estate Agents’ Visual Inspection and Disclosures”; “The Seller’s Property Disclosure”; “The Buyer’s Property Inspections (Due Diligence)”; “The General Property Inspection”; “Mold, Mildew, Lead Paint, and Other Environmental Hazards”; “Material Facts”; “Property Stigmas”; “Standard of Care”; “Seller Repairs and Credits”; “Property History”; “Rental Property Transactions”; “Title and Encroachments”; “Appraisals”; and “Excuses That Won’t Work in Court.”
This nontechnical book is ideal for those who want awareness of the potential legal problem areas in residential sales without getting bogged down in legalities. At times the text seems to result in “overkill” documentation, probably because Nichols has seen so many court room situations of inadequate paperwork. On my scale of one to 10, this excellent new book about a difficult subject rates a solid 10.
“The No-Lawsuit Guide to Real Estate Transactions,” by Barbara Nichols (McGraw-Hill, New York), 2007, $29.95, 290 pages; available in stock or by special order at local bookstores, public libraries and www.Amazon.com.
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